Experienced Experts – Confident vs. Dogmatic

As a former Alabama trial and litigation attorney, Annie has a keen eye for expert evidentiary issues
and a clear voice for practical solutions. Annie is a published author of both fiction, non-fiction,
and a comprehensive legal practitioner's guide to hourly billing published by LexisNexis. Annie graduated
from the University of Alabama School of Law cum laude. While in law school, she served as Vice President
of both the Bench and Bar Legal Honor Society and the Farrah Law Society and was a member of the Alabama
Trial Advocacy Competition Team
…

Reprinted with permission.

IMS ExpertServices periodically sends me e-mails that highlight recent key court
cases that can significantly affect the effectiveness of expert testimony, both for the plaintiff and
for the defendant. You need only scan the headlines I post daily to know the importance of effective
legal representation when intellectual property (IP) is being contested.

This article by
Annie Dike, writing for IMS ExpertServices, cites a story by NPR that claims merely
conferring 'expert' status on someone is likely to cause him/her to act in a more dogmatic, close-minded
manner. Upon reading the NPR transcript of the interview, my first reaction is that the researchers
who arrived at the conclusion undoubtedly have themselves been referred to as 'experts' in their field,
thereby virtually assuring, evidently, that their conclusions are the result of dogmatic, close-minded
biases. Besides that, the convened panels of 'experts' were in most cases deceived by the researchers
who, in their own conceit, deemed themselves able to manipulate said participants in a way that affected
only a tendency to raise or lower self-worth and possibly aggression. Ms. Dike aptly points out that,
unlike in sterile academic research environments where results are peer reviewed often by like-minded,
er, academic peers, 'experts' in the real world of a courtroom venue undergo trial [pun intended] by
fire when performing in the presence of other true experts. My guess is unless the judge and jury comprise
a ship of fools, no such behavior is long suffered when stakes are high.

Technology at Trial: Geek or Meek?

Did anyone catch that
NPR bit? Apparently, when you label someone an expert, you can make him behave close-mindedly.
The theory is, the mere label itself bolsters the person and makes him more confident in his opinions
but also more ingrained, more dogmatic in his approach. Think about that for a minute. If the label
creates a dogmatic mindset, is it more of a stigma than an honor?

Here's what
went down. The social science gurus decided to test their hypothesis on people that did not yet have
(and perhaps did not quite deserve) the 'expert' title, to see what effect it had on them. They brought
in a group of volunteers, half of whom were awarded the title 'expert' while half ─ their egos thoroughly
deflated ─ were informed they fell well below the 'expert' mark. The most important part of this test,
however, was what happened after. The people whom they labeled experts began to act differently. They
became more confident in their opinions, and – the downside - less likely to listen to others and more
fixed in their views. The label itself, apparently worn like a gallant cloak around their shoulders,
actually changed their behavior.

We found this study intriguing, and it got us thinking about two different types of experts: experienced
testifiers and novice testifiers. Both may be experts in their field, but only the expert with experience
in the courtroom has lived with the label of 'expert' as a professional designation. Do you believe
the label itself can have a detrimental effect on the witness's presentation? Still more important,
would such an alteration be a bad thing? Confidence can be an asset on the stand, though not if the
expert simply comes across as narrow-minded.

The focus in trial often seems to be more on the expertise, experience, and proven reputation of
Dr. So-and-So in his respective field as opposed to his mere label as an expert in the case. Does this
rule of thumb also apply when you are searching for a so-called expert? While you obviously want
someone who is an expert in his field, do you also want him to be just that ─ still in the field? Do
you feel an expert who is still actively practicing as a doctor, director, professor, etc. is somehow
more persuasive? In line with the 'expert label' theory, do you feel it keeps the expert more open-minded
and willing to consider new methodologies or principles? Or, does the mere fact that they're still out
there, boots on the ground, still teaching, working, researching, somehow give them more jury appeal?
Kathleen Hegen, a Partner at Lewis Brisbois tells us, "Although I do like to see continuing experience
in the field, I'm more concerned about whether the expert is credible in his/her reasoning."

We know these types of subtle nuances can make all the difference in a case, which is why we love
to discuss them. Join the debate! What do you think of the 'expert label' theory? What type
of expert do you like to retain and how do you like to present them to the jury?

This article was originally published in
BullsEye, a
newsletter distributed by IMS ExpertServices™.
IMS Expert Services is the premier expert
witness search firm in the legal industry, focused exclusively on providing custom expert witness
searches to attorneys. To read this and other legal industry
BullsEye publications, please
visit IMS Expert Services' recent articles. For your next expert witness search, call us at 877-838-8464
or visit our website.